stituting an action as provided in section thirty-nine of this chapter for the recovery of penalties for violation of this section, the commissioner shall notify the offending food store of the specific elements of the violation and shall permit such food store thirty days in which to correct such violation. If such violation is corrected not later than thirty days after such notification no penalty shall be imposed] any store found in violation of this section shall be subject to the following penalties: for the first violation in any twelve month period the store shall pay a penalty of twenty-five dollars for each of the first four violations; fifty dollars for each of the next twelve violations; and seventy-five dollars for each of the next four violations, but in no event shall the total penalty therefor exceed one thousand dollars. For a second or subsequent violation in any twelve month period a penalty of fifty dollars shall be imposed for each violation but in no event shall the total penalty therefor exceed twenty-five hundred dollars. No store shall be inspected more frequently than every seven days. No store shall be subject to the penalties provided in this chapter unless the enforcing agent determines that three and one-half percent of the sampled commodities are in violation of the item pricing requirements of this tion, in which case the store shall be subject to appropriate penalties for each violation discovered in excess of three and one-half percent of the sampled commodities.

sec

For purposes of this section, failure to have a clearly readable price indicated on twelve identical items of the same commodity shall be considered a violation of this section; except, however, that improper item pricing caused by nonintentional technical error shall not constitute violation.

a

[b] c. Each additional group of twelve identical units not item priced or improperly priced shall constitute a violation.

[c] d. Each group of less than twelve identical units not item priced or improperly priced shall constitute a violation if such a group is displayed alone.

[d] e. Each day a violation is continued shall constitute a separate violation.

5. In a store with a laser scanning or other computer assisted checkout system, the enforcing agent shall be permitted to compare the item price on any consumer commodities sold in the store, not to exceed five hundred consumer commodities at any one inspection, with the programmed computer price. The store shall provide such access to the computer as is necessary for the enforcing agent to make the determination. In the event that the programmed computer price exceeds the price marked on the commodity, the store will be subject to the following penalties: For a violation of the provisions of this subdivision, a penalty in the amount of fifteen dollars per violation shall be imposed for the first two percent of the consumer commodities compared rounded to the nearest whole number; twenty-five dollars per violation for the next two percent; fifty dollars per violation for the next two percent; and one hundred dollars for each additional violation, but in no event shall the total penalty therefor exceed one thousand dollars. No store shall be inspected more frequently than every seven days. For a second or subsequent violation in a twelve month period the above penalties shall be

doubled.

The sampling requirements of subdivision four shall not apply to this subdivision. 6. Enforcement. The provisions of this section and the regulations promulgated hereunder may be enforced concurrently by the director of a municipal consumer affairs office and/or a municipal director of weights and measures.

[5]7. Rules and regulations. The commissioner may promulgate such rules and regulations necessary to effectuate the purposes of this

section.

[6]8. Pre-emption. Any local law, ordinance, rule or regulation relating to item pricing of consumer commodities must be consistent with the provisions of this section and the rules and regulations adopted hereunder.

§ 2. This act shall take effect January first, nineteen hundred eighty-six.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

CHAPTER 351

AN ACT to amend the mental hygiene law, the social services law and the facilities development corporation act, in relation to residential care centers for adults

Became a law July 18, 1985, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

The

People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The legislature finds that there is a need for New York state to establish a new type of residential program for the mentally ill.

Currently, the state, through the office of mental health, funds residential services to mentally ill persons in family care homes and community residences. The family care program involves individuals who provide a home to mentally disabled persons. The community residence program is designed to assist mentally ill persons of all ages who can benefit from structured programming geared toward the development or rehabilitation of skills that are necessary for successful reintegration into the community. This program has grown steadily in recent years, yet does not meet the needs of those who have difficulty in handling the demands of a structured program.

The development of an alternative residential program which meets the needs of unserved mentally ill persons by providing case management medication management and linkage to social, vocational, and clinical services will further the state's interest in caring for dependent mentally ill disabled persons in the community whenever possible and avoiding unnecessary hospitalization.

It is the intent of the legislature that the enactment of the residential care center for adults program result in expansion of available beds for mentally ill persons in need of residential services and not a substantial conversion of existing residential alternatives serving the mentally ill to the residential care center for adults program.

It is the intent of the legislature that operators of residential care centers for adults will provide appropriate supervision of residents, and that each facility will establish rules relating to the conduct of residents, including but not limited to rules relating to curfews, preventing the abuse of alcohol and the use of controlled substances, and prohibiting residents from engaging in criminal activity.

§ 2. Section 1.03 of the mental hygiene law is amended by adding a new subdivision thirty-six to read as follows:

36. "Residential care center for adults" means a facility which provides long term residential care and support services to mentally ill adults, provides case management and medication management services, and assists residents in securing clinical, vocational and social services necessary to enable the resident to continue to live in the community. A residential care center for adults is not an adult care facility subject to licensure by the department of social services, nor is it an inpatient treatment facility.

§ 3. Paragraph one of subdivision (h) of section 7.05 of such law, as added by chapter seven hundred twenty-four of the laws of nineteen hundred eighty-two, is amended to read as follows:

con

1. The council shall review applications filed in accordance with subdivision (c) of section 31. 23 of this chapter for approval of the struction of a facility, other than a family care home [or], community residence or residential care center for adults, for which an operating certificate issued by the commissioner is required pursuant to article thirty-one of this chapter. The commissioner shall ensure that members of the council have the information necessary to make an informed

review.

§ 4. Subdivision (a) of section 31.02 of such law is amended by adding a new paragraph five to read as follows:

5. operation of a residential care center for adults.

§ 5. Paragraphs six and seven of subdivision (a) of section 31.04 of such law, as added by chapter eight hundred five of the laws of nineteen hundred seventy-five and such section as renumbered by chapter nine hun

dred seventy-eight of the laws of nineteen hundred seventy-seven, are amended to read as follows:

6. establishing criteria for use by staff of department facilities, social services officials and directors of local governmental units for determining the appropriateness of referring patients to family care homes [and], other community residences and residential care centers for

adults.

care cen

7. establishing criteria for determining the public need for family care homes [and], other community residences and residential ters for adults in each geographical area of the state.

§ 6. Subdivision (a) of section 31.05 of such law, as added by chapter eight hundred four of the laws of nineteen hundred seventy-five, such section as renumbered by chapter nine hundred seventy-eight of the laws of nineteen seventy-seven, is amended to read as follows:

(a) No operating certificate shall be issued by the commissioner unless the commissioner finds:

1. that the premises, equipment, personnel, records, and program are adequate and appropriate to provide the services for the mentally disabled which are sought to be authorized, such services will be provided in compliance with applicable law and regulations,

2.

3. that, in the case of a community residence or residential care center for adults, residents will be evaluated upon admission and periodically thereafter to determine their need for mental health services which are not provided on site,

4. that, in the case of any community residence or residential care center for adults, adequate and appropriate aftercare services are available (i) through a department facility or (ii) within the community in which such residence is located; and

[4.] 5. that, in the case of any community residence or residential care center for adults, the provider of services of such residence will [provide] assist residents [with] in gaining access to such aftercare

services.

§ 7. Subdivision (b) of section 31. 22 of such law, as amended by chapter seven hundred sixty-nine of the laws of nineteen hundred seventyseven and such section as renumbered by chapter nine hundred seventyeight of the laws of nineteen hundred seventy-seven, is amended to read as follows:

(b) An application for approval of the proposed certificate of incorporation shall be filed with the commissioner together with such other forms and information as shall be prescribed by, or acceptable to, the commissioner.

The commissioner shall not approve a certificate of incorporation unless he is satisfied, insofar as applicable, as to (1) the public need for the services or the facility which the proposed corporation is empowered to perform or maintain at the time and place and under the circumstances proposed; (2) the character and competence of the proposed incorporators, directors, sponsors, or stockholders; (3) the financial resources of the proposed corporation and its sources of future revenues; (4) the availability of facilities or services which may serve as alternates or substitutes for the facility or services which the proposed corporation is empowered to maintain or render; (5) such other matters as he shall deem pertinent in the public interest. The commissioner in approving the proposed certificate of incorporation may request and consider information and advice from all available sources including local and regional mental health and mental retardation and health planning agencies and groups and the mental hygiene council as to the matters set forth herein. If the commissioner proposes to disapprove the application he shall afford the applicant an opportunity to request a public hearing. The commissioner shall not take any action contrary to the advice of the health systems agency for facilities other than community residences or residential care centers for adults until he affords an opportunity to the agency to request a public hearing and, if so requested, a public hearing shall he held. The commissioner, on his own motion, may hold a public hearing on the application. Any public hearings held pursuant to this subdivision may be conducted by the commissioner or by an individual designated by the commissioner.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

§ 8. Subdivisions (c) and (d) of section 31. 23 of such law, as added by chapter seven hundred twenty-four of the laws of nineteen hundred eighty-two, are amended to read as follows:

(c) 1. The construction of a facility for which an operating certificate issued by the commissioner of mental health is required pursuant to article thirty-one of this chapter shall require the approval of the commissioner of mental health. An application for such construction shall be submitted to the office of mental health. The office shall forward a copy of the application for approval of the proposed construction, and any accompanying documents, to the local governmental unit responsible for community services for the mentally disabled where the facility is to be located, and, for facilities other than family care homes [or], community residences or residential care centers for adults, to the concerned health systems agency. The local governmental unit and health systems agency shall report their recommendations on the proposed construction within a reasonable time. Upon receipt of the recommendations of the local governmental unit and the health systems agency, or upon the lapse of a reasonable time for comment by the local governmental unit or health systems agency, the commissioner shall submit the application for facilities other than family care homes [or], community residences or residential care centers for adults along with the recommendations of the local governmental unit or health systems agency to the mental health services Council for its review and comment. The commissioner shall not act upon an application for construction of a facility other than a family care home tor], community residence or residential care center for adults without having first given the mental health services council a reasonable opportunity to make a recommendation about the application.

2. The commissioner shall not act upon an application for construction of a facility unless the applicant has obtained all approvals and consents required by law for its incorporation or establishment. The commissioner in approving the construction of a facility shall take into consideration and is empowered to request information and advice from all available sources including local and area mental hygiene and health planning agencies and groups as to (1) the availability of facilities or services which may serve as alternatives or substitutes for the whole or any part of the proposed construction [and]; (ii) the adequacy of financial resources and sources of future revenue; and (iii) the public need for the facility or the services, for facilities other than family care homes [or], community residences or residential care centers for adults, at the time and place and under the circumstances proposed. If the commissioner proposes to disapprove an application for construction of facility, he shall afford the applicant an opportunity to be heard in the same manner as prescribed in section 31. 17 of this article. The commissioner shall not take any action contrary to the advice of the health systems agency for facilities other than family care homes [or], community residences or residential care centers for adults until he affords an opportunity to the agency to request a public hearing and if So requested, a public hearing shall be held. The commissioner, on his own motion, may hold a hearing on an application for construction of a facility.

a

3. Nothing in this subdivision shall limit the application of provisions of article twenty-eight of the public health law.

(d) The commissioner may submit any plans for construction including a substantial change in bed capacity, of a facility operated by the office of mental health, other than a community residence, residential care center for adults or family care home, to the local governmental unit responsible for community services for the mentally disabled where the facility is located, to the concerned health systems agency and to the mental health services council, for their review and recommendations in accordance with this section.

§ 9. Such law is amended by adding a new section 31. 29 to read as follows:

§ 31.29 Monthly personal allowances.

(a) Each resident of a residential care center for adults shall be entitled to retain out of his income a monthly personal allowance in an amount equal to the monthly personal allowance established in section one hundred thirty-one-o of the social services law for persons receiving residential care. The provisions of such section one hundred thirtyone-o shall apply to all residents who receive supplemental security income or home relief benefits pursuant to the social services law.

(b) Any resident of a residential care center for adults, or a state operated community residence, who does not receive a monthly personal needs allowance as provided in subdivision (a) of this section shall, in accordance with regulations of the commissioner, be eligible to receive a state payment for personal needs if such resident:

1. does not have countable income, as such term is defined in section two hundred eight of the social services law, in an amount equal to or greater than the amount of the monthly personal allowance for individuals receiving residential care established in section one hundred thirty-one-o of the social services law; and

2. does not have countable resources, as such term is defined in section two hundred eight of the social services law, in an amount equal to or greater than the amount of resources an individual or couple may have and remain eligible for supplemental security income benefits and additional state payments pursuant to title XVI of the federal social security act and title six of article five of the social services law. (c) The amount of the state payment shall be the amount of the monthly personal allowance established in section one hundred thirty-one-o of the social services law for persons receiving residential care less the resident's countable income.

(d) The commissioner is authorized to promulgate necessary regulations to provide for the time and manner for such state payments for personal needs. § 10. Section 41. 38 of such law, as added by chapter eight hundred nine of the laws of nineteen hundred eighty, is amended to read as follows: § 41.38 Rental of community [residences] residential facilities for the mentally ill.

Notwithstanding any inconsistent provision of this article, the commissioner may reimburse voluntary agencies for the reasonable cost of rental of or the reasonable mortgage payment for a community residence or a residential care center for adults under his jurisdiction less any income received from a state or federal agency or third party insurer which is specifically intended to offset the cost of rental of the facility or housing a client at the facility, subject to the availability of appropriations there for and such commissioner's certification of the reasonableness of the rental cost or mortgage payment, with the approval of the director of the budget.

§ 11. Section 41.44 of such law is amended by adding three new subdivisions (d), (e) and (f) to read as follows:

(d) The Commissioner shall establish standards for the operation and funding of residential care centers for adults, including but not limited to:

1. criteria for admission to and continued residence in residential care centers for adults, including curfews, restrictions against on-site use of alcohol and controlled substances and criminal involvement; 2. provision on on-site services by residential care centers for adults which shall include but not be limited to, case management, medication management, and development of a recommended service plan for each resident for necessary social, vocational and clinical services; 3. periodic review of services provided by residential care centers for adults;

4.

'5.

staffing patterns for residential care centers for adults which shall be sufficient to provide on-site supervision twenty-four hours per day at each facility; and guidelines for determining state aid to residential care centers for adults as described in subdivisions (e) and (f) of this section. (e) Within amounts available therefor and notwithstanding any other provisions of this article, the commissioner may provide state aid to local governments and to voluntary agencies for the operation of residential care centers for adults in accordance with paragraph one of this subdivision, and may provide state aid to local governments, voluntary agencies, and other individuals or organizations certified to operate residential care centers for adults, in accordance with paragraph two of this subdivision.

1. The commissioner may provide state aid in an amount not to exceed one hundred percent of net operating costs of residential care centers for adults. The commissioner shall establish guidelines for determining the amount of state aid provided pursuant to this paragraph.

EXPLANATION-Matter in italics is new; matter in brackets [] is old law